Citation Nr: 18150307 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 10-25 749 DATE: November 15, 2018 REMANDED Entitlement to service connection for a skin disorder, to include as secondary to service-connected disorders, is remanded. Entitlement to an increased rating in excess of 10 percent, for degenerative disc disease (DDD) of the thoracolumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1992 to July 1996, February 2002 to October 2002, May 2004 to September 2005, and December 2007 to February 2009. 1. Entitlement to service connection for a skin disorder, to include as secondary to service-connected disorders. This matter was remanded by the Board in January 2018 due to the inadequacy of a September 2017 VA medical opinion regarding the origin of the Veteran’s skin condition. While it is regrettable, another remand is needed for the Board to properly adjudicate the claims herein. The Veteran contends that his skin condition is secondary to the medications he takes for his service-connected thoracolumbar spine condition. As a result of the inadequacy of the previous September 2017 VA medical opinion and pursuant to the Board’s January 2018 remand, another VA medical opinion was issued in April 2018. The April 2018 VA examiner opined that the Veteran’s skin condition was less likely than not proximately due to or the result of the Veteran’s active service. The examiner also opined that the Veteran’s skin condition was less likely than not aggravated by the medications he takes for his service-connected lumbar spine condition. However, in a portion of the rationale provided by the examiner, the examiner stated, “In this Veteran, it is important to note that he is a diabetic and this may be the more likely etiology of his noted skin changes.” See April 2018 Medical Condition Skin DBQ. The examiner further stated that one of the risk factors for the Veteran’s current skin diagnosis was “having a medical condition that reduces your resistance to infection, such as diabetes, chronic leukemia and HIV/AIDS.” Id. The Veteran was granted service connection for diabetes in a July 2017 rating decision. Given the statements made by the April 2018 VA examiner regarding the Veteran’s diabetes being possibly related to his skin condition, a remand is necessary to determine if the Veteran’s skin condition is caused or aggravated by his service-connected diabetes. 2. Entitlement to an increased rating in excess of 10 percent, for degenerative disc disease (DDD) of the thoracolumbar spine. The Veteran’s lumbar spine was examined by VA in April 2018, where the Veteran reported that during a flare-up he experiences a swollen back with increased left SI joint symptoms, limited motion and leg pain. However, when asked to determine whether pain, weakness, fatigability or incoordination significant limits functional ability during a flare-up, the examiner could not answer without mere speculation. The Board notes that in Sharp v. Shulkin, No. 16-1385 (U.S. Vet. App. Sep. 6, 2017), the Court stated that, in certain instances, it has “recognized circumstances in which an examiner’s conclusion that an ‘opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive [medical] opinion.’” (Sharp citing to Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). In applying the above principles to the case before it, the Sharp Court stated that the “critical question in assessing the adequacy of an examination not conducted during a flare is whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares. See Mitchell, 25 Vet. App. at 44.” Id. Furthermore, although acknowledging it is not legally binding, the Court found that the VA Clinician’s Guide makes explicit what DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) clearly implied, which is that examiners, when evaluating certain musculoskeletal conditions, should obtain information about the “severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves.” Id. In the present case, it appears that the April 2018 VA examiner did the latter by obtaining the information from Veteran. However, the examiner failed to answer the critical question by translating that information and conveying it in the form that allows the Board to properly assess the Veteran’s functional impairment as to the percentage by which “normal function” is lost during flare-ups and into what point in the range of motion pain results in functional loss during flare-ups. As such, the Board finds that a new VA examination is needed. The matters are REMANDED for the following action: 1. Obtain any and all relevant up to date VA treatment records, and with any required assistance of the Veteran, obtain any outstanding private medical records. 2. Then, obtain a medical opinion with the appropriate medical professional to determine the nature and etiology of the Veteran’s intermittent pustular folliculitis. Whether a physical examination is needed, will be left to the discretion of the assigned medical professional. The claims file should be made available to the examiner for review, to include a copy of this REMAND, and the examiner shall acknowledge such review in the examination report. The examiner will then determine the following: (a.) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s intermittent pustular folliculitis is caused or aggravated by the Veteran’s service-connected diabetes. The examiner shall consider the comments of the April 2018 Skin DBQ medical opinion regarding the Veteran’s diabetes and its relation to his skin condition. The examiner is informed that “aggravation” is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If the examiner determines that the Veteran’s skin condition is aggravated by his service-connected diabetes, the examiner should report the baseline level of severity of the skin condition prior to the onset of aggravation. A complete rationale must be provided for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation which reflects the limitation of the medical community at large and not those of the particular examiner. 3. Schedule the Veteran for a VA examination to address the current severity of thoracolumbar spine condition. The claims file should be made available to the examiner for review, to include a copy of this REMAND, and the examiner shall acknowledge such review in the examination report. The examiner will then determine the following: (a.) The range of motion of the Veteran’s lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing, if possible. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b.) Consider, in detail, the Veteran’s reports of flare-ups and repeated use over time, then estimate any related functional loss in terms of additional range of motion loss. If the examiner is unable to do so, the examiner must indicate why. A complete rationale must be provided for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation which reflects the limitation of the medical community at large and not those of the particular examiner.   4. Thereafter, readjudicate the Veteran’s claims. If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. N. Shannon, Associate Counsel